AA Legal Documents

Inherited property

Contents

Inheriting a property with someone living in it

If you inherit part of a property and another owner is still living there, you can agree with them whether they will continue living there and under what terms (their right to remain may be set out in the Will) or whether the property will be sold. In the absence of an agreement, you can generally apply to a court to force a sale of the property and the division of the proceeds.

If you inherit a property that has a tenant, you have certain responsibilities as a landlord. Their legal rights will need to be taken into account if you wish to sell the property.

Registering the property in your name

Once the property passes to you, you can register your ownership at the Registers of Scotland. You don't have to do this unless the property is to be sold or you are to borrow money against the security of it, but it will give you the best proof of ownership. It will also make things more straightforward when dealing with the property in the future.

If you decide to sell the property

Paying Capital Gains Tax

Capital Gains Tax (CGT) is paid when someone makes 'gains' (profits) above a certain level when selling certain assets. However, when someone dies any increase in the value of the property up to the date of the death isn't subject to CGT.

If you sell it later, there may be CGT to pay on any gain since the date of death – though this won't usually apply if you sell an inherited property that you've been living in as your main home since you inherited it.

If you decide to keep two homes after you inherit

If you decide to keep and occupy as a home both your own property and an inherited property you'll need to tell your tax office if you want to nominate one as your main home. Any gain on selling your main home is usually free of CGT, whereas a gain on any other usually isn't. If you don't make a nomination, and you later sell one of the properties HM Revenue & Customs will look at all the facts to decide whether that property was in fact your main home.

You can change your mind at a later date about which is your nominated main home, but you must let your tax office know. Time limits apply.

Taking on mortgage payments

If you inherit a property which has a mortgage, you'll be responsible for the monthly payments even if you don't live there unless the gift is stated in the will to be free of heritable debt, in which case the residue of the estate must bear the cost of redeeming the mortgage. If the payments aren't made, the property could be repossessed and sold to pay off the mortgage.

If you're worried about mortgage payments, it's important to get advice immediately. An adviser can help you work out your options and/or negotiate with your lender.

Renting the property out

If you decide to rent the property out, you'll have to pay tax on any profit you make from the rental income. You'll also have to follow relevant laws on the safety of the property and certain contents.

If you inherit a property in a trust

A trust is a way of holding and managing money or property for people who may not be ready or able to manage it for themselves. If you're left property in a trust, you are called the 'beneficiary'. The 'trustee' is the legal owner of the property. They are legally bound to deal with the property as set out by the deceased in their Will.